Age discrimination, commonly called ageism, is one of the most common forms of unlawful treatment at work. Other than in some very limited circumstances it is against the law for employers to treat someone less favourably because of their age. The age gap between staff can now be 50 years or more so it may be difficult for employers to manage their competing needs and different outlooks. However, discriminatory treatment because of age will entitle staff and job applicants to bring claims in the employment tribunal. If successful, individuals can recover potentially unlimited compensation for such claims.
Acas has recently published guidance looking at how age discrimination can happen in the workplace, how to prevent it, and how different treatment because of age can be allowed in very limited circumstances.
- during the recruitment process,
- at training and promotion stages,
- during performance management,
- at retirement.
One example given at the recruitment stage is that employers are advised to set out the type or types of experience needed for a role rather than ask for a certain number of years’ experience.
Stereotyping – making assumptions about job applicants’ and employees’ capabilities and likely behaviours because of their age – is one of the most likely causes of age discrimination. Stereotyping can often lead to: poor decision-making when recruiting and promoting or deciding who gets trained; the de-motivation of existing staff who become aware of the stereotyping; and less trust among colleagues. Ultimately, it can lead to discrimination claims.
There are ways to avoid stereotyping. They include:
- judging people strictly on their job performance or quality of their job application – not assumptions because of their age
- having different age groups in a team or project
- encouraging different age groups to swap ideas, knowledge and skills.
Using ageist language
Derogatory and abusive terms, and comments about an employee or job applicant because of age are likely to be discriminatory. Examples might include a younger employee telling an older colleague they are “past it” or “over the hill”‘ or an older employee saying to a young colleague, “you’re just a poor little snowflake”.
In discrimination, how the recipient perceives the words matters more than the intention of the person in saying them. It is no defence to say the comments were “only banter” or that this type of culture was accepted in the workplace.
When different treatment because of age may be allowed
The law contains some exceptions where different treatment because of age can or may be lawful. They include:
- where the need for certain types of discrimination because of age can be lawfully proved by the employer
- the National Minimum Wage and National Living Wage
- pay and any extra benefits and perks linked to certain periods of time with the employer
- where being a particular age or within a particular age range, or not a particular age, is a legal requirement of the job. This is likely in only very limited circumstances. In law, this is known as an ‘occupational requirement’
- some circumstances in redundancy. For example, deciding to keep staff who have been with the employer for longer, and making redundant staff with less time with the firm. This is likely to discriminate against younger employees. However, it could be allowed if the employer can prove a lawful business reason in the circumstances – for instance, keeping the most experienced staff who are fully trained and skilled as they are essential to the future of the restructured company.
For more information see the Acas guidance.